Wrongful Death Cases: Physician-Patient Privilege

The physician-patient privilege, which protects the privacy of a patient’s medical records, often becomes an issue after a patient’s wrongful death. There is continuing controversy and debate over the privacy of a deceased patient’s medical records. While some believe that a patient’s privacy should extend after death, others believe that there’s no need for privacy to extend, especially if the privilege hinders the ability of physicians (or some other individual or business) to defend themselves in a wrongful death lawsuit.

What is the Physician-Patient Privilege?

The physician-patient privilege is a right of privacy in the medical context. Under federal law and the law of every state, patients have a right not to have their medical information shared without their consent. The general rule is that unless the patient/decedent waives the privilege, a physician is not allowed to disclose any information acquired in attending to the patient in a professional capacity. The physician-patient privilege covers only private or protected health information (information that’s not already publicly or commonly known about the patient), and further, there are some exceptions to the privilege, such as a court order to produce medical orders can legally breach the privilege.

Waiver of the Privilege

The fact that the patient is deceased doesn’t necessarily dissolve the privilege, or make it absolute. Some state laws provide that the decedent's personal representative, surviving spouse, or next of kin may waive the physician-patient privilege for the dead patient (decedent). Nonetheless, the principle is still disputed by physicians and hospitals that don’t want to give copies of their records to attorneys. Some state public health laws require the disclosure of medical records only to doctors and hospitals, and do not expressly provide for disclosure to attorneys.

A wrongful death plaintiff's right to obtain the deceased's medical records outside the context of litigation is a matter of some dispute. However, stating that one is seeking to obtain records in consideration of future litigation is often enough to make the patient's (and therefore the plaintiff's) right to the records absolute. Thus, bringing a wrongful death action may have the effect of waiving the physician-patient privilege, especially if the decedent’s lifetime health is at issue in the case.

The Process After a Waiver

Typically, a personal representative must be appointed before a decedent’s medical records can be obtained. When the physician-patient privilege is waived for the purposes of wrongful death litigation, great care must be taken not to overstep the waiver and reveal irrelevant medical documents to the case, and especially not to reveal information that would tend to disgrace the memory of the decedent.

Combined Actions

A patient's privilege is waived regarding all medical treatment related to an action when the plaintiff commences an action for negligence or personal injury.

A combined action – not simply wrongful death but also personal injury/negligence claims – is common for wrongful death claims, as the combined action claims tend to drive up the potential damages. Higher potential damage claims often lead to better settlements for plaintiffs. An unfortunate side effect of combined actions is the fact that the medical physician-patient privilege is waived.

After a Waiver in a Combined Action, Are All Records Available?

No – it’s important to consider that there are at least two major types of physician-patient privilege, medical and psychiatric. The psychiatric privilege is known in California and other states as the psychotherapist-patient privilege. Unless the lawsuit is claiming psychological damages above and beyond those associated with a typical injury, then the psychotherapist-patient privilege cannot be breached.

That means, for example, if a woman’s husband died in a car accident, and she is suing for personal injury and wrongful death, she has not made the records of her husband’s psychological counseling sessions available for the court. The strictness of this policy differs from state to state (in California, for example, the policy for protection of psychiatric records is quite strong), so make sure to speak with a qualified attorney to learn about the applicable state law in your case.